When do presidents exercise unilateral power?

After Democrats lost control of the House of Representatives in 2010, President Obama turned away from the gridlock imposed by Tea Party conservatives and towards a different method for his primary form of policy making: executive orders. At this time, while some noted this as a method of circumventing a Congress locked against him, critics denounced Obama’s attempts “to seize control of our economy and our lives”.

While Obama’s use of executive orders was not groundbreaking or even uncharacteristic of a modern U.S. President — in fact, he had the lowest average number of executive orders per year since Grover Cleveland— the strategy behind his tactic was clear: to accomplish substantive policy goals that were not feasible in a split Congress. This included establishing DACA, directing federal agencies to reduce their greenhouse gas emission, and deepening research into gun violence.

Despite having majorities in both houses of Congress during the first half of his term in office, President Trump has put forward executive actions at a pace faster than his predecessors, focusing on extremely polarizing topics such as travel bans and increased deportation of illegal immigrants and even suggesting using an executive order to eliminate birthright citizenship.  These raise the questions: when and why does a president choose to exercise his unilateral power, instead of working within the legislative system and signing a law?

 

Executive action has changed in frequency and type since WWII

As Franklin D. Roosevelt assumed the presidency in March 1933, some Americans argued that exercising an unprecedented level of executive authority would be justified to accomplish his goals – and in many ways, he did greatly expand the powers of the presidency. Despite having full control of Congress for his entire tenure in office, President Roosevelt utilized the unilateral power of executive orders more than, and more frequently than, any other president since, issuing 3,721 executive orders over his 12-plus years, an average of 307 per year and nearly one per day.

By comparison, every post-World War II president’s use of executive power seems relaxed. But President Trump seems to be bucking the trend of issuing fewer executive orders.

In his first year alone, Trump utilized executive orders 55 times, the most since President Clinton’s 57 in 1993. The most recent Republican president to issue more than Trump was President Reagan, who also enacted 57 in 1983. Trump has also used executive orders 31 times so far in his second year in office. This would correspond to an average rate of more than 48 per year if he keeps up this pace, which would be the most since Jimmy Carter’s presidency in the late 1970’s.

However, as executive orders have decreased in frequency, another significant, and quieter, form of unilateral executive action has risen in its stead: the presidential memorandum. As the number of executive orders have almost halved since the 1960’s, the number of presidential memoranda have increased about twenty-fold on average.

While presidential memoranda and executive orders lack any meaningful functional difference, they do have clear distinctions in form that can make the former more preferable. Most notably, presidential memoranda don’t have to be published in the Federal Register, while maintaining the force of law that characterizes executive powers. As a result, presidential memoranda can be somewhat difficult to track in administrations from before whitehouse.gov was a staple of governmental transparency.

While President Obama highlighted his low number of executive orders as a rebuke of Republican complaints of his “imperial presidency,” his 257 presidential memoranda published in the Federal Register detail a different narrative. Many of those same critics also seem to be turning a blind eye to President Trump, who published 38 memos in 2017, putting him on pace for 304 over the course of a hypothetical 8-year run. Similarly, White House records that include unpublished memos put Obama’s tally as high as 644, and Trump’s at 104 so far.

Presidential memoranda also gain a rhetorical advantage simply from their less aggressive title, as compared to the more authoritarian spin that can be put on “orders”. This can be used to downplay some of the more powerful decisions that can be made through that form, as seen through Obama’s DACA policy.

 

When are presidents most likely to issue executive orders?

While recent use of executive orders pales in comparison to the heyday of early 20^th century presidents, as seen in the Federal Register archive, there is a noticeable relationship towards this unilateral form of policy-making when the Congress is in support of the president compared to when it is split or fully against him. Since 1952, presidents have issued an average of 50 executive orders per year. This average drops to about 45 when Congress is split or against the president, and rises to 59 when Congress is controlled by the president’s party.

One explanation of this is simple. Since 1952, of the 25 years that both the House and Senate have sided with the president, only seven have been Republican-ruled, with George W. Bush holding four years in the middle of his presidency, Eisenhower with two at the beginning, and Trump with almost two. The other eighteen years were dominated by Democrats, who tend to support more active exercise of government power — Kennedy, Johnson, Carter, Clinton, and Obama.

In this vein, every Democratic president in history has had at least two years of full control of Congress, while the Republicans that made up much of middle-to-late-twentieth century American presidential control — Nixon, Ford, Reagan, Bush — never had more than one branch on their side. On that note, the extensive Democratic rule of Congress throughout the mid-1900’s allowed only one Republican, Eisenhower, the full party support of Congress at any time during 1933-2001.

While Trump is one of the few to have had full control, he also has been leader of a notoriously unproductive Congress, and his utilization of executive orders has served as an alternative way to spur his agenda forward.

Within respective administrations, frequency of executive orders seems to peak as new presidents begin their terms in office — a sort of “new man in charge” kind of tendency that reaffirms their status and authority. For Trump (so far), Obama, Bush 43, Clinton, Kennedy, Eisenhower, Truman, and Roosevelt, the first year as president represented either their highest or second highest usage of executive orders. Some of these immediate actions also serve to undo the policies of previous administrations, like the Mexico City Policy, which has been enacted and rescinded every time a new party comes into office since the Reagan administration.

The final twenty days of a president’s final term also operate at a rapid pace, with higher average output than any other year. If one were to extrapolate this final month into a full year, every president since Truman operates at a pace that would make it their most productive year from this perspective. This “last-ditch” effort to exercise political control may be a factor that feeds into the need of the new president to use the tools at his disposal, free from political constraints.

 

Conclusion

The unilateral authority of the president is certainly changing before our eyes, as its branches of influence push away from the executive norms of the past, and are increasingly challenged in court. As approval ratings for Congress rest below 20 percent, and a newly elected Democrat-led House comes into power, it seems clear that President Trump may mirror his predecessor by continuing to enact his policy agenda through executive action.

 

Photo via Flickr/The White House